Modern Family? No Problem, Say the New York Courts

If the twenty-first century has made anything clear, it’s that no two families are alike.  Couples are creating multiracial families by adopting from different countries.  Same-sex spouses are rearing biological children as a result of innovative procedures like artificial insemination and surrogacy.  Couples are choosing to raise children in committed partnerships rather than marriages.  Today, the family unit ranges from single-parent households to families with three or more parents.

With the constantly evolving social landscape, courts are breaking from custom and proving to be more accepting of “unconventional” families.  In a seminal case last summer, Brooke S.B. v. Elizabeth A. C.C., the New York Court of Appeals made clear that a non-biological, non-adoptive partner can seek custody and visitation rights.  The court overturned the longstanding view that such partners cannot seek custody or visitation even if an established relationship exists.  Instead, the court said, a non-biological partner can seek those rights if he/she can prove by “clear and convincing evidence” that there was an agreement to conceive and raise the child together.

Further showing how willing the courts are to take “non-traditional” family arrangements seriously, the Suffolk County Supreme Court recently went even further, awarding tri-custody of a child in Dawn M. v. Michael M.  In an extremely enlightened opinion, Judge Leis decided that—because the threesome agreed to conceive and raise the child together—all three parents should be awarded custody.  His focus—after speaking with the child—was rightly on the fact that tri-custody, although virtually unprecedented, was in the child’s best interest.  In fact, the child considered his two mothers to be equal in all respects: as far as the Judge could tell, the child differentiated his Moms only by the color of the car they drove.

The New York courts have made clear that they understand that not all modern families fit into so-called “traditional” models.  They have also indicated, however, that planning can help courts both determine what the parties want and come to a decision that reflects those intentions.  These decisions highlight the importance—and viability—of creating unique parenting plans before courts get involved.  To learn more about creating a customized parenting plan for your family, please email me at or call me at (646) 491-9008.